DAVID PAUL SANDERSON V. COMMONWEALTH OF KENTUCKY
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MODIFIED : OCTOBER l, 2009
RENDERED : MAY 21, 2009
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2007-SC-000537-MR
CIRC.TTIT COT 1RT
HONORABLE TIMOTHY C . STARK, JUDGE
NO . 06-CR-00189
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COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING AND REMANDING
After a jury trial, Appellant was convicted of two counts of Second-Degree
Sodomy and three counts of First-Degree Sexual Abuse, and was sentenced to
thirty-five years in prison and five years of conditional discharge . He raises five
claims of error on appeal . Because Appellant's Child Sexual Abuse
Accommodation Syndrome claim constitutes reversible error, his conviction is
reversed and the case is remanded for a new trial . However, because other
errors are likely to recur on retrial, they are also addressed .
I . BACKGROUND .
Appellant met Mendy Terrell and her daughter, B .T., in the late 1990s;
and he married Mendy in December 2000 . Appellant and B .T. appeared to
have a close relationship . They moved into Appellant's house, and Appellant
built a garage on the property where he could watch television and play poker
with friends.
B.T . testified that after moving into Appellant's house, he sexually
abused her on a weekly basis for six years, as much as two to three times per
week while Mendy was at work or sleeping. He told B .T. that he would hurt her
if sl ever said al
le
nything about the abuse., which took place. 1 n the garugA, "» ti1L
1
-the three of them moved to another house . At the new house, the abuse took
place in the garage, in B .T.'s room, and in Mendy's room.
Several years after her marriage to Appellant, Mendy became pregnant.
They began experiencing marital problems after she gave birth to the child; and
a divorce action was filed on January 6, 2006. Appellant moved out of the
house on February 25, 2006, but allegedly continued to abuse B .T. until about
a week before he left.
About two months after Appellant left, the mother of a child who had
spent the night with B.T. several years earlier told Mendy that when her
daughter spent the night there, she watched a pornographic movie with B .T.
and Appellant . According to B .T.'s friend, B .T. instigated the viewing. When
Mendy first confronted B .T., she denied that it happened . Mendy then called
Appellant and told him that she knew about the pornographic movie he had
watched with the girls . B.T. overheard the last part of the conversation and left
but later confessed to having watched the movie and told Mendy about the
abuse that had taken place.
Appellant was indicted, convicted by a jury, and sentenced to thirty-five
years in prison . His appeal to this Court, therefore, is a matter of right.
Ky. Const. § 110(2)(b) .
11 . ANALYSIS .
A . Compliance with CR 76.12 .
The Commonwealth contends that Appellant's brief should be stricken
for failure to comply with CR 76 .12(4)(c)(v), which requires the brief to refer to
the point in the record where each error was preserved . However, a careful
review of Appellant's brief reveals that all but one alleged error was preserved
or argued to be palpable . Therefore, Appellant has, in fact, substantially
complied with the provisions of CR 76 .12, that issue can be determined from
the record, and this Court will exercise its discretion not to strike the brief.
Simmons v. Commonwealth, 232 S .W.3d 531, 533 (Ky .App. 2007) ("While
[Appellant's] brief did not fully comply with [CR 76 .12(4)(c)(v)], dismissal for
failure to comply with the provisions of CR 76 .12 is discretionary rather than
mandatory.") ; Baker v. Campbell County Bd. of Ed. , 180 S.W .3d 479, 482
(Ky.App. 2005) ("[D]ismissal based upon a failure to comply with CR 76 .12 is
not automatic .") .
B.
Testimony Related to Child Sexual Abuse
Accommodation Syndrome.
Appellant claims the trial court improperly admitted testimony about
Child Sexual Abuse Accommodation Syndrome (CSAAS) from Mendy; Brian
Terrell (B.T .'s father) ; and Lori Brown, a clinical psychologist. Though Mendy
and Terrell both testified about B.T.'s physical and psychological "symptoms,"
the most damaging testimony came from Brown, a clinical psychologist who
counseled B .T. and gave testimony that B .T.'s addition of new allegations of
sexual abuse is normal .
Although Appellant objected three separate times to Brown's testimony
during the Commonwealth's case-in-chief, the Commonwealth contends this
1sslLe is lmpl opelly preserved for appellate review. inde%°.d, it does iiot appear
that Appellant specifically used the term CSAAS in his objections . However, we
reject the Commonwealth's contention that Appellant is presenting a new
theory of relief on appeal, having conceded the admissibility of Brown's
testimony. To the contrary, Appellant objected first to "any" of Brown's
testimony before she began testifying and objected again two more times
during her testimony. These three objections adequately informed the trial
court of the patent inadmissibility of Brown's CSAAS-related testimony.
Hardin v. Commonwealth , 428 S .W .2d 224, 226 (Ky . 1968) ("While the
objections were not sharply to the point we think they adequately alerted the
trial judge to the proposition . . . .") . Appellant repeatedly raised hearsay as a
basis for his objections ; and CSAAS testimony is inadmissible, at least in part,
because it is hearsay. Hellstrom v. Commonwealth, 825 S .W .2d 612, 614 (Ky.
1992) ("Mr . Veltkamp listed the symptoms but refrained from classifying them
directly as the `child sexual abuse syndrome .' Avoiding the term `syndrome'
does not transform inadmissible hearsay into reliable scientific evidence.") . We
conclude that Appellant's repeated objections, although not precisely
articulated, were sufficient to preserve this issue for our review. It should also
be noted that Sanderson's convictions are being reversed on another
independent ground, making this preservation issue largely irrelevant .
In Kurtz v. Commonwealth, 172 S.W.3d 409 (Ky . 2005), this Court
quoted the basic rule against CSAAS testimony:
[WJhere a victim had delayed reporting of abuse, we held improper
the testimony of a seasoned child sex abuse investigator stating
that it was common, in her experience, fl r sexually abused victims
to delay reporting of the abuse . . . . We held that "a party cannot
introduce evidence of the habit of a class of individuals either to
prove that another member of the class acted the same way under
similar circumstances or to prove that the person was a member of
that class because he/she acted the same way under similar
circumstances ."
Id. at 41 4 (qu oting Miller v. Commonwealth, 77 S .W.3d 566, 571-72 (Ky.
2002)) .
In Hellstrom v. Commonwealth, 825 S .W .2d 612 (Ky. 1992), this Court
reversed a conviction based on testimony similar to the testimony in this case .
In Hellstrom , the director of the Child Abuse Center at the University of
Kentucky Medical Center (who had a Masters degree in clinical social work)
testified that "`delayed disclosure' is common in these types of cases." Id. at
613 . The Court noted that "[b]oth sides recognize that we have reversed a
number of cases because of trial error in permitting the use of testimony
regarding the so-called `child abuse accommodation syndrome' to bolster the
prosecution's case." Id. Further, it does not matter that the social worker
"listed the symptoms but refrained from classifying them directly as the `child
sexual abuse syndrome .' Avoiding the term `syndrome' does not transform
inadmissible hearsay into reliable scientific evidence ." Id. at 614 .
In Newkirk v. Commonwealth,
937
S .W .2d
690 (Ky. 1996),
this Court
applied the rule against CSAAS testimony to experts. Newkirk first noted that
"[i]n an unbroken line of decisions . . . this Court has repeatedly expressed its
distrust of expert testimony which purported to determine criminal conduct
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rationales for the specific rule against CSAAS testimony include "the lack of
diagnostic reliability, the lack of general acceptance within the discipline from
which such testimony emanates, and the overwhelmingly persuasive nature of
such testimony effectively dominating the decision-making process, uniquely
the function of the jury." Id. at 691 . Newkirk contains a lengthy discussion of
CSAAS cases, and it concludes:
[T]he cases demonstrate unmistakably that this Court has not
accepted the view that the CSAAS or any of its components has
attained general acceptance in the scientific community justifying
its admission into evidence to prove sexual abuse or the identity of
the perpetrator. Moreover, such evidence has been rejected on
grounds that it lacks relevancy for failure to make the existence of
any fact of consequence more probable or less probable than it
would have been without the evidence. KRE 401 .
Id. at 693 .
This Court further noted that even if it were to "`become accepted by the
scientific community that a child who had been sexually abused is likely to
develop certain symptoms or personality traits, there would remain the
question of whether other children who had not been similarly abused might
also develop the same symptoms or traits .' Id. (quoting Lantrip v .
Commonwealth , 713 S.W .2d 816, 817 (Ky. 1986)) . And, finally, this Court
"expressed grave concern that the expert may invade the province of the jury by
unduly influencing its assessment of credibility." Id. "This Court has
previously stated there is no such thing as expertise in the credibility of
children ." Id. a t 694 . This Court has "embraced the view that mental health
prolesslonals are not experts at dlscernlng the truth ; they are trca.i%ied to accept
facts provided by their patients without critical examination of those facts ." Id.
In this case, Brown testified that it is normal for child victims of sexual
abuse, like B.T., to add details about their abuse after they have been in
counseling for an extended period of time and to appear happy in their outward
life and be able to excel in their extracurricular activities and make good
grades . The Commonwealth even asked whether what Brown described as a
child's attempt to disconnect from such abuse is the reason sexually- abused
girls become prostitutes.
Here, the testimony in the Commonwealth's case-in-chief that sexuallyabused children, like B .T., commonly add details over time through counseling
is analogous to the situation in Miller, where this Court held testimony that
sexually abused victims commonly delay reporting of their abuse to be
reversible error. Miller, 77 S.W .3d at 577 . In essence, victims are delaying
their reporting of some of their abuse when they later add details. In addition,
when Brown was recalled in the Commonwealth's rebuttal, she went even
further in identifying generic characteristics of child sex abuse victims by
describing them as outwardly appearing happy. This is the type of testimony
this Court feared in Newkirk; this was testimony where there "'remain[s] the
question of whether other children who had not been similarly abused might
also develop the same symptoms or traits .' Newkirk, 937 S .W.2d at 691-92
(quoting
Lantrip, 713 S .W.2d at 817) . Finally, the Commonwealth even went so
far as to ask whether these "symptoms" are what cause sexually abused
1- :1 14
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Brown's "expert" testimony in this case, coupled with the
Commonwealth's speculation about the creation of prostitutes, are the exact
type of generic and unreliable evidence this Court has repeatedly held to be
reversible error. Therefore, this case must be reversed for a new trial because
of the admission of CSAAS testimony against Appellant.
C . Remaining Issues .
1.
Statutory Maximum Sentence for Class C Felonies
and Retroactive Application of Amendment to
Conditional Discharge Statute .
"Because the judgment has been reversed for the foregoing reasons, we
will address only those additional assignments of error that are likely to recur
upon retrial ." Bell v. Commonwealth, 245 S .W.3d 738, 743 (Ky. 2008) ; Terry v .
Commonwealth , 153 S .W.3d 794, 797 (Ky. 2005) ; Springer v. Commonwealth,
998 S .W.2d 439, 445 (Ky. 1999) .
,
Appellant is correct that under KRS 532 .110(1) (c) and KRS 532 .080(6) (b),
he could only receive a maximum sentence of twenty years, not the thirty-five
years to which he was sentenced . Appellant was convicted of two counts of
Second-Degree Sodomy' and three counts of First-Degree Sexual Abuse . 2
KRS 532 .110(1) (c) states, "The aggregate of consecutive indeterminate
terms shall not exceed in maximum length the longest extended term which
would be authorized by KRS 532 .080 for the highest class of crimes for which
any of the sentences is imposed. . . ." The highest class of crime for which
Appellant eWas
Voltvlcted
was Second-Degree "C7odomy, a Class C felony . in
'
Gibbs v. Commonwealth, 208 S .W.3d 848, 855 (Ky. 2006), this Court held that
where "[tJhe highest degree of felony conviction that Appellant received was a
Class C felony . . . the longest aggregate sentence Appellant could have received
was the maximum length authorized for a Class C felony under the Persistent
Felony Offender statute : KRS 532 .080." KRS 532 .080(6)(b) states, "If the
offense for which he presently stands convicted is a Class C or Class D felony,
a persistent felony offender in the first degree shall be sentenced to an
indeterminate term of imprisonment, the maximum of which shall not be . . .
more than twenty (20) years." Therefore, even though Appellant's conviction is
reversed, if he is convicted of the same felonies after another trial, his
maximum sentence cannot exceed twenty years' imprisonment .
In addition, Appellant was sentenced to five years of conditional
discharge, although the version of KRS 532 .043 in effect at the time these
offenses were allegedly committed (prior to July 2006) only allowed for a
1
2
Second-Degree Sodomy is a Class C felony. KRS 510 .080(2) .
First-Degree Sexual Abuse is a Class D felony. KRS 510.110(2) .
conditional discharge of three years . The situation here is on point with
Purvis v . Commonwealth, 14 S .W .3d 21 (Ky. 2000), where a prior amendment
of KRS 532 .043 increased the maximum length of conditional discharge . In
Purvis, this Court held that the amendment disadvantaged the Appellant in
that case and that its retroactive application was an ex post facto law and,
thus, unconstitutional . Id. at 24 . The situation here is identical . Therefore,
r-1
ppellan l
sentence to con' ltlollal
d1sc11Gi.1gC
could lot exceed three year
w~7,
the
statutory maximum at the time the alleged offenses took place .
The Commonwealth concedes the maximum possible sentence in this
case was twenty years' imprisonment and three years' conditional discharge,
but it argues that the Appellant did not make the sentencing hearing part of
the record . Regardless of whether the sentencing hearing was made part of the
record, this Court has a list of Appellant's convictions before it and can apply
the statutory maximum sentence as a matter of law. If Appellant is convicted
of the same offenses after another trial, his maximum possible sentence will be
twenty years' imprisonment and three years' conditional discharge .
2 . Social Worker's Hearsay and Ultimate Issue Testimony.
Appellant claims that much of the testimony of Carla Hyde, a social
worker, was inadmissible hearsay because Hyde testified primarily about B .T.'s
statements to her. Appellant also claims that Hyde testified about B.T.'s
credibility, an ultimate fact to be decided by the jury.
Hyde testified about many things B .T. told her. Hyde testified that B .T.
told her that Appellant touched her in her private areas; that Appellant showed
10
her pornographic movies; that she would be outside playing when Appellant
would call her into the garage to touch her under and on top of her clothes;
that she and Appellant would lick each other; that Appellant would play with
himself and stuff would come out; and that Appellant told her that if she did
not do any of those things, he would hurt her. In addition, Hyde testified about
the credibility of B .T. when she said B.T . "seemed believable" ; and she was
it
r
appropriately nervous and c-. ~riro~ ))
scar et,L.
This Court "has continuously held that the hearsay testimony of social
workers is inadmissible and constitutes reversible error because it unfairly
bolsters the testimony of the alleged victim." Smith v . Commonwealth,
920 S .W.2d 514, 516 (Ky. 1995) . "There is no recognized exception to the
hearsay rule for social workers or the results of their investigations ."' Sharp v.
Commonwealth , 849 S .W.2d 542, 546 (Ky. 1993) (quoting Souder v.
Commonwealth , 719 S .W .2d 730, 734 (Ky. 1986), overruled on other grounds by
B.B . v. Commonwealth , 226 S .W .3d 47 (Ky. 2007)) . As was the case in Sharp,
Hyde's testimony "extensively repeated the [child's] out-of-court statements" ;
and it also "contains extensive conclusions as to the meaning of the [child's]
acts and statements." Sharp, 849 S.W.2d at 545. Therefore, this case fits
within the established rule that the hearsay testimony of social workers is
inadmissible and constitutes reversible error. On retrial, a social worker
cannot testify about B .T.'s statements made to her and her conclusions on the
ultimate issue of B.T.'s credibility.
III . CONCLUSION .
In conclusion, the trial court committed reversible error by admitting
propensity testimony, a key reason for the rule against Child Sexual Abuse
Accommodation Syndrome testimony.
Because Appellant has raised other issues that are likely to recur upon
retrial, these issues have also been addressed. The maximum sentence for the
feioily
case (the highest iiaOa of vvinch
vv'ao a
Cia~a~ feioiiy)
..
was twenty years' imprisonment and three years' conditional discharge (under
the statute in effect at the time the offenses allegedly took place) . Also, the
social worker improperly testified as to B.T .'s hearsay statements to her; and
she improperly testified about her ultimate opinion on B .T.'s credibility.
Therefore, the conviction and judgment of the Graves Circuit Court is
reversed ; and the case is remanded for a new trial .
Minton, C.J. ; Cunningham, Schroder and Venters, JJ., concur.
Abramson, J ., concurs in result only by separate opinion. Scott, J., concurs,
in part, and dissents, in part, by separate opinion .
ABRAMSON, JUSTICE, CONCURRING IN RESULT ONLY: I concur in
result only . Justice Scott raises an important question. The time is ripe to
reconsider our position on CSAAS and whether any refinement is appropriate.
SCOTT, JUSTICE, CONCURRING, IN PART, AND DISSENTING, IN PART :
Although I concur with the majority's analysis and resolution of the other
issues, I respectfully dissent from its view of certain elements of evidence often
referred to as the Child Sexual Abuse Accommodation Syndrome (CSAAS),
12
which provide explanations for the otherwise inconsistent conduct of abused
children and, thus, properly assists the jury in making determinations as to
whether such inconsistent conduct is an indicator of untruthfulness or is
conduct commonly experienced with abused children. I speak, here, of delayed
reporting and recantation, as well as their presentment with demeanors that at
first blush, appear inconsistent with their allegations of abuse .
LI1'~e the v ver`vvheimitig maj %JII ty of Vtller stales, i be11eT a that such
V
evidence, when not used impermissibly to establish the abuse but, rather, as a
viable tool to explain the sometimes confusing and commonly misunderstood
behavioral patterns of children who may have been subjected to abuse, should
be admissible .
CSAAS "first came to light in an article published in 1983 that described
five (5) characteristics commonly observed in sexually abused children:
(1) secrecy; (2) helplessness ; (3) entrapment and accommodation ; (4) delayed,
conflicted, and unconvincing disclosure ; and (5) retraction [or recantation] ."
ELISABETH TRAINOR, J .D ., ADMISSIBILITY OF EXPERT TESTIMONY ON CHILD SEXUAL
ABUSE ACCOMMODATION SYNDROME (CSAAS) IN CRIMINAL CASE , 85 A .L .R.
(2001) .
There are six (6) categories of social science expert testimony
that have developed and have regularly been proffered to
support child witnesses in sexual abuse cases . The first
category is "rehabilitative" testimony offered to explain the
puzzling conduct of the child victim to meet a defense attack
on the child's credibility. These behaviors have been termed
as CSAAS . The second category is syndrome evidence,
including CSAAS evidence, of supposed typical child victim
behavior proffered, not to explain unusual conduct of the
child, but to prove affirmatively that sexual abuse has
13
5th 595
occurred . The third category is'a spin-off of the second with
the expert testifying to typical behaviors of a child victim
specifically related to the child victim in the case. The fourth
is expert testimony that the child has in fact been abused,
and the fifth is testimony that the child is credible . The final
category involves profile testimony on the actual sexual
offender or alleged perpetrator of the abuse.
(citing State v . J .Q . , 617 A .2d 1196 (N.J . 1993)) .
This Court has dealt with all categories in one form or another, with a
m ltiti,rlP of rPagnn-z fnr tlnP;r rp ;Pr+t ;nr~ . - Vi irt,7 xr . --1-11 Yv Vail.t\.ai,
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172 S .W.3d 409, 413, 414 (Ky. 2005) (habit and profile characteristics of
perpetrators) ; Miller v. Commonwealth, 77 S.W.3d 566, 571, 572 (Ky. 2002)
(delayed reporting denied as habit evidence) ; Newkirk v. Commonwealth,
937 S .W .2d 690, 691-96 (Ky . 1997) (considered psychiatric rebuttal evidence
explaining in general terms child victims' recantation) ; Hall v. Commonwealth ,
862 S .W.2d 321, 322, 323 (Ky. 1993) (psychiatric testimony that child was
sexually abused and was telling the truth) ; Hellstrom v . Commonwealth,
825 S .W.2d 612, 613, 614 (Ky. 1992) (testimony on abuse and delayed
disclosure invaded province ofjury) ; Dyer v. Commonwealth , 816 S .W.2d 647,
652-54 (Ky. 1991) (overruled on other grounds by Baker v. Commonwealth,
973 S.W .2d 54 (Ky. 1998)) (perpetrator profile) ; Brown v . Commonwealth,
812 S .W .2d 502, 503, 504 (Ky. 1991) (overruled on other grounds by Stringer v .
Commonwealth , 956 S .W2d 883 (Ky. 1997)) (use of CSAAS to prove abuse and
child's subsequent behavior) ; Mitch ell v. Commonwealth, 777 S.W .2d 930, 932,
933 (Ky. 1989) (use of CSAAS for determination of guilt and perpetrator profile) ;
Hester v . Commonwealth , 734 S .W.2d 457, 458 (Ky. 1987) (recantation) ;
14
Lantrip v. Commonwealth , 713 S .W.2d 816, 817 (Ky. 1986) (use of CSAAS to
prove abuse) ; Bussey v. Commonwealth, 697 S.W.2d 139, 140, 141 (Ky. 1985)
(use of CSAAS as proof of abuse and perpetrator profile) . Although we have
come close, see Newkirk, 937 S.W .2d at 690, we have yet to recognize the
validity of CSAAS evidence of the first category of use (rehabilitation) when only
offered "to explain the puzzling conduct of the child victim to meet a defense
attack
on
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IN CRIMINAL CASE,
supra. I believe it is time we did.
"In general our reasons have been the lack of diagnostic reliability, the
lack of general acceptance within the discipline from which such testimony
emanates, and the overwhelmingly persuasive nature of such testimony
effectively dominating the decision-making process, uniquely the function of
the jury ." Newkirk, 937 S .W. 2d at 691 . Interestingly enough, the closest we
have come was our consideration of the commonality of recantation by abuse
victims as analyzed in Newkirk, where the Court split 4-3 . Id. at 696 .
In Newkirk, the trial court allowed expert testimony regarding
recantation "for the limited purpose of rebutting any attack on [the victim's]
credibility based upon the recantation of her allegations of her abuse, by
explaining in general terms why an alleged victim might recant ." Id. at 697 .
Moreover, the evidence was admitted subject to a limiting admonition by the
court; "[t]his witness is being called to testify for the limited purpose of
explaining the psychological dynamics surrounding a recantation following an
15
accusation of the sexual abuse. This evidence is not offered for the purpose of
proving whether [the victim] was or was not sexually abused." Id. Recantation,
delayed reporting, and inconsistent demeanors of child victims all involve
puzzling conduct of the child and, therefore, support a defense attack on the
child's credibility. As was noted by the dissent in Newkirk:
Kentucky remains as one of the few jurisdictions that still rejects
all testimony regarding the phenomenon clinically identified and
^y~ nrictr~t rl ,1~
Child -~ ,mil P 1-,i,~v Ann~mmn~~ti~r,
Syndrome[,] which provides jurors a psychological explanation for
certain behavior in small children following sexual abuse. Such
testimony is necessary because these children often exhibit
conduct that is inconsistent with the jurors' life experiences or
understanding of human nature in children.
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Id. at 696 (Graves, J., dissenting) . As the dissent also pointed out, "the
recantation symptom is widely accepted and confirmed by credible studies at
renowned research institutions by well credentialed experts." Id.
"Permitting [an] appellant to impeach the child victim's credibility on the
basis of a previous recantation[, a delayed reporting of the incident or his
demeanor,] without also allowing the Commonwealth to present testimony
explaining the phenomenon of recantation gives the alleged perpetrator an
unfair advantage to exploit the process of how some child sexual abuse victims
respond to abuse." Id. at 698. (Barry Willett, Special Justice, dissenting) .
As Special Justice Willett noted, in Newkirk:
When a jury of lay adults, hearing the horrible details in a typical
child sexual abuse case, is confronted with a child victim recanting
his or her previous allegations of sexual abuse, it is
understandable that they would tend to apply an adult standard to
the child victim's behavior in an effort to understand what
motivates the victim to recant his or her allegations. The reality of
child sexual abuse is that children respond differently than do
16
adults to both the abuse and the process of disclosing the abuse to
the proper authorities.
Id. at 698-99 . Moreover, as noted in Wimberley v. Gatch, 635 So .2d 206,
213 (La. 1994)
Adults frequently have preconceived ideas about how a
traumatized person will react after infliction of the trauma. The
child victim of sexual abuse does not react to the situation
according to adult concepts of self-determinism with autonomous,
rational choices. In fact, their behavioral patterns vastly differ
fro nl adult expectations .
For these reasons, most states allow CSAAS "rehabilitative" testimony
offered to explain the puzzling conduct of the victim in order to meet the
defense's attack on the victim's credibility. See United States v . Bighead,
128 F.3d 1329, 1331 (9th Cir. 1997) ("[T]estimony had significant probative
value in that it rehabilitated (without vouching for) the victim's credibility after
she was cross-examined about the reasons she delayed reporting and about
the inconsistencies in her testimony.") ; United States v . Two Elk , 536 F .3d 890,
903, 904 (8th Cir. 2008) ("In child sexual abuse cases, `a qualified expert can
inform the jury of characteristics in sexually abused children."' (quoting United
States v . Eagle , 515 F.3d 794, 800 (8th Cir. 2008)); Sexton v. State, 529 So.2d
1041, 1049 (Ala. Crim . App. 1988) ("The necessity for expert testimony
increases if there are certain inferences made by the defense (such as the
implication that the child's delay in reporting the abuse indicates fabrication),
or certain unusual behavior of the child witness which `should not be allowed
to go unrebutted when there exists a recognized phenomenon which may
explain it.' (quoting Frye v . United States, 293 F. 1013 (D .C . Cir. 1923)
17
(internal citation omitted)) ; Bostic v. State, 772 P.2d 1089, 1096 (Alaska Ct.
App . 1989) reversed on other grounds by Bostic v. State , 805 P .2d 344 (Alaska
1991) ("[E]xpert testimony generally describing characteristic behavior of
sexually abused children could serve a legitimate purpose when offered to
negate a claim or inference that the complaining witness' behavior in a given
case was inconsistent with a truthful accusation of sexual abuse .") ; State v.
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helps jurors evaluate victims' credibility and explains why victims of sexual
abuse may behave inconsistently is admissible ."); People v. Sandoval ,
79 Cal.Rptr.3d 634, 639 (Cal. Ct. App. 2008) ("Such expert testimony is needed
to disabuse jurors of commonly held misconceptions about child sexual abuse,
and to explain the emotional antecedents of abused children's seemingly selfimpeaching behavior.") ; People v. Mintz, 165 P.3d 829, 831 (Colo. Ct. App .
2007) ("An expert may testify as to the typical demeanor and behavioral traits
displayed by a sexually abused child.") ; State v . Spi arolo , 556 A.2d 112, 122
(Conn. 2003) ("[T]he overwhelming majority of courts have held that, where the
defendant has sought to impeach the testimony of the minor victim based on
inconsistencies, partial disclosures, or recantations relating to the alleged
incidents, the state may present expert opinion evidence that such behavior by
minor sexual abuse victims is common .") ; Wittrock v . State, 630 A.2d 1103
(table) 1993 WL 307616, 2 (Del. Super. Ct. 1993) (unpublished opinion)
("Expert testimony is admissible in such instances since it assists the trier of
fact to evaluate the psychological dynamics and behavior patterns of alleged
18
victims not within a layperson's common experience while also permitting the
trier of fact to determine the credibility of the victim's and other witness'
testimony .") ; Mindombe v. United States, 795 A .2d 39, 46 (D .C . Cir . 2002)
("[E]xpert testimony is admissible in cases where the government successfully
proffers that the facts and evidence to be presented at trial are likely to be
inconsistent with a lay juror's expectations as to how a child sexual abuse
tF,ictirn Q1-c ,1r1 respond tom, or.h vll.i l .llll
11V"lu 1V'7i1V11G 4\J O"l111 Q traumatizing
1.1
veilt."1~, jvyard v . Stag°, ,
~°
.
519 So .2d 1082, 1084 (Fla. Dist. Ct . App . 1988) ("The court determined that
the testimony would be helpful to the jury but prohibited the witness from
commenting on the truthfulness of the child.") ; McCoy v. State, 629 S.E .2d
493, 494 (Ga . Ct. App. 2006) ("Since `[1]aymen would not understand this
syndrome without expert testimony, nor would they be likely to believe that a
child who denied a sexual assault, or who was reluctant to discuss an assault,
in fact had been assaulted,' the trial court did not err in permitting the expert
witness to testify." (internal citation omitted)) ; State v. Batangan , 799 P.2d 48,
49 (Haw. 1990) ("Thus, while expert testimony explaining `seemingly bizarre'
behavior of child sex abuse victims is helpful to the jury and should be
admitted, conclusory opinions that abuse did occur and that the child victim's
report of abuse is truthful and believable is of no assistance to the jury, and
therefore, should not be admitted."); People v. Hodor, 792 N.E.2d 828, 861 (111.
App. Ct. 2003) (proper for witness to testify "concerning behavioral patterns
typically manifested by victims of sexual abuse, or whether victim's behavior
was consistent with recognized syndromes.") ; Steward v. State, 652 N .E.2d
19
490, 499 (Ind. 1995) (Rehabilitative aspects of CSAAS "merely informs jurors
that commonly held assumptions are not necessarily accurate and allows [the
jury] to fairly judge credibility." (internal citation omitted)) ; State v . Ceevanhsa,
495 N .W.2d 354, 357 (Iowa Ct . App. 1992) (witness properly "testified on
matters which explained relevant mental and psychological symptoms present
in sexually abused children.") ; State v . Reed, 191 P.3d 341, 274 (Kan. Ct. App .
OnnQl
«xr;+*-,ACC « nr~~~r n~~~A ~Pr Avr~Prfnr~ir~inn ac to XXThNT n
t YY 11.11~rJJ V111~ ~GL V V lllil 1.J114.J1i1 L VrJlllivil c.w vV vv . .J a.~
11XmnthPtl!-A1
iJ I-
might recant an initial allegation of sexual abuse . [Witness] did not render an
opinion about [the child's] credibility.") ; Gatch, 635 So .2d at 215
("Understanding that secrecy and that delayed, conflicted and unconvincing
disclosure are the norm and that immediate disclosure is atypical, in civil
actions, the child victim's delayed or partial disclosure will not be
countenanced, in law or equity, to victimize the child a second time .") ;
Commonwealth v. Deloney, 794 N .E .2d 613, 620 (Mass. Ct. App . 2003)("It is
within the trial judge's discretion, subject to proper limiting instructions, to
admit expert testimony on the general behavioral characteristics of sexually
abused children.") ; State v. McCoy, 400 N .W.2d 807, 810 (Minn . Ct. App. 1987)
(testimony on the typical behavioral characteristics of victim of child abuse was
admissible) ; Hall v . State , 611 So .2d 915, 919 (Miss . 1992) ("[T]estimony by an
expert as to certain behavior common to sexually abused children is proper.") ;
State v. Price , 165 S .W.3d 568, 572 (Mo . Ct. App . 2005) ("General profile
testimony describes a generalization of behaviors and other characteristics
commonly found in victims of sexual abuse[,] which is usually admissible.") ;
20
State v. Geyman , 729 P.2d 475, 479 (Moot. 1986) ("We hold that expert
testimony is admissible for the purpose of helping the jury to assess the
credibility of a child sexual assault victim .") ; State v. Roenfeldt, 486 N.W.2d
197, 204 (Neb . 1992) ("The reasoning for a rule allowing an expert to testify
about sexual abuse in generalities . . . is that `[flew jurors have sufficient
familiarity with child sexual abuse to understand the dynamics of a sexually
abut ;XTe relatinrnsl-hp 'and 'the behavior exhibited
behavior exhibited
lY,
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by sexually
is often contrary to what most adults would expect.')
(quoting
ab71Cel~
children
People v. Nelson ,
561 N .E.2d 439, 442 (111. App. Ct. 1990) (internal citation omitted) ; Smith v.
State , 688 P.2d 326, 327 (Nev . 1984) ("It would be useful to the jury to
know . . . it is not uncommon for them to deny the act ever happened .") ; Jam,
617 A.2d at 580 ("The court must also explain to the jury that the expert's
testimony is not intended to address the ultimate question of whether the
victim's molestation claims are true and must admonish the jury not to use the
testimony for that purpose .") ; People v. Carroll, 740 N .E.2d 1084, 1090 (N .Y.
2000) ("We have long held that expert testimony regarding [the] abused child
syndrome or similar conditions may be admitted to explain behavior of a victim
that might appear unusual or that jurors may not be expected to
understand .") ; State v. Richardson, 434 S.E .2d 657, 65 (N .C . App. 1993)
("[T]estimony given in this case describing general symptoms and
characteristics of sexually abused children to explain the victims' behavior is
not error."); State v. Stowers, 690 N .E.2d 881, 883 (Ohio 1998) ("An expert
witness's testimony that the behavior of an alleged child victim of sexual abuse
21
is consistent with behavior observed in sexually abused children is admissible
under the Ohio Rules of Evidence.") ; Davenport v . State , 806 P.2d 655, 659
(Okla. Crim . App. 1991) ("Numerous courts have allowed an expert to testify in
rebuttal to explain delay in reporting[,j as well as why a child recants .") ;
State v. Middleton, 657 P.2d 1215, 1220-21 (Or. 1982) ("If a qualified expert
offers to give testimony on whether the reaction of one child is similar to the
rP~~t;nr, of mn~t
1 ~.uV G1V11 Vl 111V V L
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assist the jury in deciding whether a rape occurred, it may be admitted.") ;
Commonwealth v. Baldwin, 502 A.2d 253, 257 (Pa. Super . Ct. 1985)
disapproved by Commonwealth v. Davis, 541 A.2d 315, 317 (Pa. 1988) ("In
other words, so long as the expert does not render an opinion on the accuracy
of the victim's recitation of facts, his or her general testimony on the dynamics
of sexual abuse does not prejudice the jury.") ; State v . Edelman, 593 N .W .2d
419, 423 (S .D . 1999) ("[W]e are also persuaded by the rationale of other courts
who have allowed CSAAS testimony by an expert within proper limits.") ;
Gonzales v . State, 4 S .W.3d 406, 417 (Tex . Crim. App. 1999) ("Expert witness
testimony that a child victim exhibits elements or characteristics that have
been empirically shown to be common among sexually abused children is
relevant and admissible .") ; State v. Catsam , 534 A.2d 184, 187 (Vt. 1987)
("Given the demonstrated usefulness that such evidence can have in assisting
the jury to assess the credibility of the complaining child witness, we join the
majority of courts that have concluded that it is within the trial court's
discretion to admit such evidence in appropriate circumstances ."); State v.
22
Huntington , 575 N .W.2d 268, 697 (Wis . 1998) (testimony of expert concerning
victim's delay in reporting and conflicting assertions was not inadmissible
comment on victim's credibility) ; Griego v. State, 761 P.2d 973, 978 (Wyo.
1988) (Evidence "helped to explain why the victim did not immediately flee the
scene and report the incident to her parents or the authorities.") .
The expert testimony on why victims might recant or delay
reporting [or initially omit some of the details,] is [only] being
offered to r,_ but attacks vn the victim's credibility. -v lung as the
expert limits the testimony to general characteristics that would
explain delays in reporting, recantations, and omission of details,
the testimony will not substitute [the expert's] estimation of
credibility for that of the jury. Rather, it is to provide a scientific
perspective for the jury according to which it can evaluate the
complainant's testimony for itself.
State v . Foret, 628 So .2d 1116, 1130 (La . 1993) (citing GOLDSTEIN,
CREDIBILITY AND INCREDIBILITY : THE PSYCHIATRIC EXAMINATION OF THE
COMPLAINING WITNESS , 137
Am .J .Psychia . 1238, 1240 (1980)) .
Thus, as Special Justice Willett noted in his dissenting opinion in
Newkirk, 937 S .W.2d at 700 :
Expert testimony explaining the phenomenon of recantation [,
delayed reporting and omission of details] by some victims of child
sexual abuse should be admissible for the limited purpose of
rebutting an attack on the child victim's Credibility . . . . Any such
testimony should be preceded by a limiting instruction to the effect
that the expert's testimony is not intended and should not be used
to determine whether the victim's sexual abuse allegation is true .
In this case, during cross-examination, the child victim's credibility was
attacked on the revelation at trial of new details of the events that had never
before been revealed to the police or social workers . Thereafter, the
Commonwealth called Ms. Brown, the Director of Clinical Service for the
23
Purchase Area Sexual Assault Center, who addressed the commonality of a
child giving more details about the abuse following counseling. She was called
to the stand again in rebuttal to address further issues created by the defense
concerning the child's delay in reporting the incident and that she appeared to
be a "happy" child. Ms . Brown explained that this is not at all unusual and is
sometimes typical. On the other hand, on cross-examination, she admitted
f-~-,at
just because c.~ child
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abused . Clearly, Appellant's attack on the child victim's demeanor, initial
omission of details, and delayed reporting was intended to suggest fabrication
according to one's usual life experiences. However, in cases of sexual abuse,
established and acceptable scientific studies have shown that these events and
appearances are common in children who are sexually abused . Thus, as
knowledge of the commonality of these events in these situations "will assist
the trier [of] fact to understand the evidence [and] to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training, or
education, [should be able to] testify thereto." KRE 702 .
For these reasons, we should now break with precedent, joining the
majority ofjurisdictions in allowing the introduction of such evidence for
rehabilitation purposes only and with an accompanying admonition limiting
the use to such purpose. It is for this reason that I dissent from the majority's
opinion on this issue.
COUNSEL FOR APPELLANT:
Mark P. Bryant
Emily M. W. Roark
Bryant Law Center
Bryant Shannon Roark
P. O . Box 1876
Paducah, Kentucky 42002-1876
COUNSEL FOR APPELLEE :
"Tack Conway
Attorney General of Kentuc
Bryan Darwin Morrow
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
,*uyrrutr (~vurf of ~irufurkV
2007-SC-000537-MR
DAVID PAUL SANDERSON
V.
APPELLANT
ON APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C . STARK, JUDGE
NO. 06-CR-00189
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION
The Petition for Rehearing filed by the Appellee, Commonwealth of
Kentucky, is DENIED . The Opinion of the Court by Justice Noble,
rendered May 21, 2009, is hereby modified on its face by substitution of
the attached opinion in lieu of the original opinion. Said modification
does not affect the holding.
Minton, C .J. ; Abramson, Cunningham, Noble, Schroder, and Scott,
JJ ., sitting . All concur. Venters, J., not sitting .
ENTERED: October 1, 2009 .
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